Citation Nr: 0918219
Decision Date: 05/14/09 Archive Date: 05/21/09
DOCKET NO. 04-14 183 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a low
back disorder, and if so, whether service connection is
warranted.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Nadine W. Benjamin, Counsel
INTRODUCTION
The Veteran served on active duty from February 1966 to
February 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida, which denied entitlement to the
benefit currently sought on appeal. In June 2007, the Board
remanded this claim to the RO for additional development.
The case has been returned to the Board and is ready for
further review.
The issue of entitlement to service connection for a low back
disorder on the merits is addressed in the REMAND portion of
the decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Service connection for a low back disorder was denied by
an April 1981 rating decision. The Veteran was notified of
the denial in May 1981, and he submitted a notice of
disagreement in December 1981. A statement of the case was
issued in December 1981. The Veteran did not perfect an
appeal.
2. Additional evidence associated with the claims file since
the RO's April 1981 decision was not previously before agency
decision makers, and relates to an unestablished fact that,
when considered with all the evidence of record, raises a
reasonable possibility of substantiating the claim for
service connection for a low back disorder.
CONCLUSIONS OF LAW
1. The April 1981 RO decision that denied service connection
for a low back disorder is final. 38 U.S.C.A. § 7105 (West
2002); 38 C.F.R. § 20.1103 (2008).
2. Since the April 1981 RO decision, new and material
evidence has been received; hence, the requirements to reopen
the claim for service connection for a low back disorder have
been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156
(2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a)
(2008). In order to prevail on the issue of service
connection on the merits, there must be (1) medical evidence
of a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the present disease or injury. Hickson v. West, 12 Vet.
App. 247, 253 (1999).
The Veteran's initial claim for service connection for a low
back disorder was denied in an April 1981 rating decision.
The Veteran was notified of the decision in May 1981, and he
submitted a notice of disagreement in December 1981. A
statement of the case was issued that same month, and the
Veteran did not appeal. The decision is final based on the
evidence then of record. See 38 U.S.C.A. § 7104; 38 C.F.R. §
20.1103. The Veteran seeks to reopen his claim.
A claimant may reopen a finally adjudicated claim by
submitting new and material evidence. 38 U.S.C.A. § 5108
(West 2002). New evidence means existing evidence not
previously submitted to agency decisionmakers. Material
evidence means existing evidence that, by itself or when
considered with previous evidence of record, relates to an
unestablished fact necessary to substantiate the claim. New
and material evidence can be neither cumulative nor redundant
of the evidence of record at the time of the last prior final
denial of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a) (2008). For the purpose of determining if
evidence is new and material, its credibility is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992).
In the April 1981 rating decision, the RO considered the
Veteran's service treatment records, which showed treatment
during service for pain in the low back in July 1968 and
treatment in December 1968 for ligament strain after the
Veteran complained of pain in the lumbosacral region
radiating to the leg. The RO also considered VA treatment
records dated in 1972 which did not reflect treatment for a
back disorder. The claim was denied because the RO
determined that there was no back condition shown by the
record.
The Veteran now attempts to reopen his claim. Evidence added
to the record since the April 1981 denial includes
duplicative service treatment records, and private records
dated in 1992 which showed that the Veteran reported
undergoing laminectomies in 1975 for herniated discs. Also
of record is a VA examination report of April 2003 which
shows a diagnosis of status post history of lumbar
laminectomy L3-4 and L4-5 with residual chronic low back pain
syndrome and radiculopathy.
The Veteran has stated that he injured his spine during
service and that he lived with this injury from 1969 until
1975 when his injury was aggravated while at work. He stated
that his spine was hurt during service and slowly got worse
over the years. See VA Form 21-4138, dated May 13, 2003.
As noted above the claim was previously denied because there
was no definite finding of a current disorder. While the
service treatment records are not new, the newly submitted
more current medical evidence is new and material since it
relates to an unestablished fact, that is, a confirmed
diagnosis of a lumbar spine disorder. This evidence, in
conjunction with the Veteran's complaints of continuity of
symptomatology, creates a reasonable possibility of
substantiating the claim. As such, the evidence is new and
material.
Therefore, under these circumstances, the Board concludes
that the criteria for reopening the claim are met. See 38
U.S.C.A. § 5108; 38 C.F.R. § 3.156. VA has satisfied its
duty to notify and assist to the extent necessary to allow
for a grant of the claim to reopen. See Bernard v. Brown, 4
Vet. App. 384, 392-94 (1993). Accordingly, assuming, without
deciding, that any error was committed with respect to either
the duty to notify or the duty to assist, such error was
harmless and need not be further considered.
ORDER
New and material evidence has been received, and the claim of
entitlement to service connection for low back disorder is
reopened.
REMAND
Unfortunately, a remand is required in this case. Although
the Board sincerely regrets the additional delay, it is
necessary to ensure that there is a complete record upon
which to decide the Veteran's claim so that he is afforded
every possible consideration.
A review of the record reflects that the Veteran has had
treatment for back complaints in 1975 and in the 1980s. (See
June 26, 1992 private neurological consultation report).
Complete information concerning this treatment has not been
requested and no attempt to secure any records associated
with this treatment has been made.
The service treatment records show that the Veteran was
treated in 1968 for complaints of low back pain. He has
currently been diagnosed with lumbar laminectomy L3-4 and L4-
5 with residual chronic low back pain syndrome and
radiculopathy. The Veteran has not been examined to
determine the relationship, if any, between his in-service
complaints and the current findings. As such a remand is
required to obtain an opinion in this regard.
The appellant is hereby notified that it is his
responsibility to report for any examination scheduled, and
to cooperate in the development of the case, and that the
consequences of failure to report for a VA examination
without good cause may include denial of the claim. See 38
C.F.R. §§ 3.158 and 3.655 (2008).
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran and request
complete information regarding all
treatment for a back disorder since
service. Of particular interest is
information regarding treatment in 1975
(from Dr. Donald Dooley) and in the
1980s, as well as information regarding
any Workman's Compensation claim filed at
the time of the 1975 injury or related
employment records. After securing any
appropriate consent from the Veteran,
attempt to obtain any such treatment
records. If VA is unsuccessful in
obtaining any medical records identified
by the Veteran, it must inform him of
this and request him to provide copies of
the outstanding medical records.
2. Thereafter, schedule the Veteran for
an appropriate VA examination. The
claims file and a copy of this remand
must be made available to the examiner
for review and the examiner must indicate
in the examination report that this has
been accomplished. All indicated tests
and studies should be accomplished.
The examiner should offer an opinion as
to whether it is at least as likely as
not (a 50 percent probability or greater)
that any currently diagnosed low back
disorder had its onset during active
service or is related to any in-service
disease or injury.
The examiner must provide a complete
rationale for all opinions.
3. Following completion of the above,
the claim should be readjudicated. If
the benefit sought is not granted, the
Veteran and his representative should be
furnished a supplemental statement of the
case and be provided an opportunity to
respond. The claim should be returned to
the Board as warranted.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs